An Eclectic Journal of Opinion, History, Poetry and General Bloviating

Thursday, June 27, 2013

The Supremes Beat it Out of Town With Everybody Mad—Except their Masters

The Perpetrators

Well
the 9 robed warriors of the Supreme
Court finally wrapped up the session’s business Wednesday when they
released the long awaited rulings on the Federal
Defense of Marriage Act (DOMA) and California’s
Proposition 8 that made same sex marriage illegal again in that state.Not, of course before Justice Antonin Scalia had the most public snit and temper tantrum
ever produced from the bench as he droned on reading his furious 26 page
dissent on the first case.

Outside
and around the country proponent of marriage
equality cheered the less than clear-cut victories handed them—striking down
most, but not all of the provisions of DOMA on one hand and giving a narrow,
technical ruling in the California case that allows marriages to resume there
but sets no precedents for other states.Despite a surprisingly strong majority opinion written by swing Justice Anthony Kennedy based on both Federalism and equal protection the justices dodged a blanket ruling that would
have made same gender marriage legal in all states.But that, like the ruling that challengers to
a court ruling upending Proposition simply lacked
standing to make their case, was widely expected.

Outside
and across the country marriage equality proponents erupted in cheers.Although their cause was not totally
victorious, they recognized that the ruling will put pressure on states still
wavering on legalization, like Illinois and
lead to further challenges that will likely strike down the rest of DOMA and
require all states to respect legal marriages of the others and may—years down
the line—lead to a final review of all restrictive state marriage legislation.

Yet
this came just a day after the justices struck down the key enforcement
provisions of the Voting Rights Act of
1965, a decision that was widely viewed as a green flag to all sorts of
state shenanigans aimed at restricting minority voting, staving off demographic
shifts, and ensuring Republican sway over the Deep South and possibly even in the U.S. House of Representatives will continue uninterrupted for the
next few years.See yesterday’s blog
post for details on that.

These
two landmark rulings seemingly in contradiction, led some of the usual pin-head
pundits on broadcast and cable TV to cluck solemnly about how
the court was charting a “middle road” between extremes.What a crock of shit, pardon my French. It
ignores a pattern of rulings this term, some of which have sailed under much,
if any, public scrutiny in which an apparent whiplash of contradictions actually
laid out a clear and overarching agenda—preserving privilege, empowering corporate
power, and limiting dissent whenever possible.

Let’s
look at some of the Court’s handy work as viewed by one decidedly non-scholar observer.

1) Take the little
noticed case—outside of the gloating big business press—case of American Express
v. Italian Colors decided last week with a majority opinion by the ever
reliable Scalia.Italian Colors, a California and several other customers
sued giant American Express over fees 30% higher than other bank cards for
honoring the companies’ bank-issued credit cards as a condition for being able
to accept their original proprietary cards.Despite the fact that requiring those fees clearly violated Federal law—the
company didn’t even bother denying that—the plaintiffs were restrained from
suing by a “hold a gun to their head” boilerplate agreement to submit all differences
to arbitration.Since each of the
effected companies had losses of less than $5,000 a year to the scheme, none
could afford the arbitration process which would cost them several times that amount.
So they filed a class action suit arguing that requiring the use of arbitration
arguing that such cases are so expensive to bring that allowing class action
waivers would effectively immunize big companies against antitrust liability.They cited a 1985 Court decision which
advanced a doctrine of effective
vindication, now widely cited by lower courts but never raised to a point
of precedent.

Scalia
effectively junked effective vindication and sneeringly wrote, “Antitrust laws
do not guarantee an affordable procedural path to the vindication of every
claim.”While all of this may seem
arcane, the effect is wide ranging by making many class action suits almost
impossible to file.Companies now have
enormous encouragement to coerce customers—both other businesses and individuals—to
sign agreements requiring arbitration.Without fear of any reasonable expectation of redress in the courts
corporations can flaunt many laws and regulations in perfect security that they
cannot be challenged.

In
her dissent, Justice Elaina Kagan summed
up the far reaching damage.“a betrayal
of our precedents….Here
is the nutshell version of today’s opinion, admirably flaunted rather than
camouflaged: Too darn bad.”

Score
a big win for corporate oligarchy.

2) Some cases were
more personal—and more than a little tragic.Take the horribly named Adopted Couple v. Babygirl case.After a young woman became pregnant her
boyfriend voluntarily surrendered his parental rights in exchange for not being
held for child support.The young woman
made private arrangements with a couple who became foster parents of the girl
at birth with the intention of adopting her.They cared for the girl through the early months of her life.But the miscreant father was a certified
member of the Cherokee Nation and
decided that he did not want the baby adopted.He asserted his rights under the 1978 Indian Child Welfare Act (ICWA)
which intended to “help preserve Native American families by erecting high
hurdles for ending the parental rights of Indian parents and to discourage
adoptions outside tribes.”Tribes which
often saw children stripped from them and handed to white families had fought
hard for years for this reform.

After
some considerable legal struggle, a lower court ruled in 2009 that the child
had to be surrendered to the father.She
has lived with him ever since while her white family sued to regain custody on the
grounds of the best interest of the child and that, basically, the father was
an irresponsible mope.

The
justices were faced with a stark choice.On one hand an unsavory dolt and legislation crafted to protect a
minority and on the other had a picture post card nice white couple.It was no contest.The courts chose the nice white couple and in
the process gutted the protections of the Indian Child Welfare Act.

While
even many liberals—the kind of folks most likely to engage in inter-racial
adoptions or know someone who has—are understandably sympathetic to the
would-be adoptive family the court may have inadvertently—or not—cleared the
way to the bad old days of native children stripped from their tribes.At this moment, for instance, record numbers
of Lakota children from the Pine Ridge and Rosebud reservations are being removed from their families by South Dakota child welfare authorities
who seek to extinguish parental rights.Most of these children will probably now be fast tracked to white homes
even when there are willing homes available among their own people.

Score
one for white skin privilege.

3) Salinas v. Texas was a routine
police procedural case that no one but pesky civil libertarians noticed.Two
brothers were shot at home in Houston with no known witnesses. Shotgun shell
casings, however, were left at the scene. The police invited Genovevo Salinas who had been at a party at that house the night
before the shooting down to the station, where they talked for an hour. They
neither arrested him or read him his Miranda
warnings.Salinas agreed to give the
police his shotgun for testing. When they asked whether the gun would match the
shells from the scene of the murder Salinas stopped talking, shuffled his feet,
bit his lip, and started to tighten up. But he did not assert his Miranda
rights.

Ballistics
tests did tie Salinas’s shot gun to the spent casings.Although Salinas did not take the stand in
his trial, police were allowed to describe his behavior under the informal
questioning and the jury was encouraged to use his silence and an inference of
guilt.

Up
until now, this kind of blatant behavior has routinely been held illegal by
courts at all levels.But this Supreme
Court majority has been signaling for a long time that they were looking for a
case by which they could substantially whittle away at the protections in place
since the landmark 1960 Miranda v. Arizona case. The hapless
Salinas was just the patsy they were looking for.

Justice
Samuel Alito waved aside objections
that Salinas’s Miranda Rights had been violated in his majority opinion.He said that since the suspect was not under
arrest he was free to leave at any time and should have known to expressly—and in
particular legal language—asserted his right to silence.Going further, he found nothing wrong with describing
the suspect’s comfortableness under questioning in the testimony of
investigating officers at his trial.

Scalia
and Justice Clarence Thomas went
even further in their concurring opinion—they didn’t think Salinas had any
rights at all to invoke before his arrest and objected to the original Miranda
itself.

Dumbfounded,
Justice Stephen Byer wrote in his
dissent for the minority, “defendant in an impossible predicament. He must
either answer the question or remain silent “If he answers the question, he may
well reveal, for example, prejudicial facts, disreputable associates, or
suspicious circumstances—even if he is innocent.”He also said that under the inevitable stress
of any police interview, it is asking too much that ever suspect remember the
exact “magic words” which would give him protection.

The
upshot is that authorities now have every impetus to abuse pre-arrest
interviews up to and including using them to coerce confessions that may well
turn out to false.

Score
one for unfettered police authority and “order.”

4)If there was an anomaly case from the
usual pattern of this court of automatically supporting the interests of
enormous corporations, it was Association of Molecular Pathology v. Myriad
Genetics the so called gene patterning
case closely followed by environmentalists
and medical ethicists and not
many others.

In
1995 scientists working for the biotech
start-up firm Myriad Genetics isolated and then succeeded in synthesizing the
BRCA2 gene, which they promptly patented
then used to perfect a test for early diagnosis of susceptibility to certain
kinds of cancer.Hundreds of other
genetic discoveries have also been patented.

But
Myriad was particularly aggressive in defending its patent bringing it to
threaten ruinous action against University
of Pennsylvania scientists doing routine research.A few more egregious bulling episodes of that
sort led the Association of Molecular
Pathology to challenge the patent on the ground that no one should be able
to patent a substance found in Nature.They were supported in the case by the American Civil Liberties Union (ACLU) and the Public Patent Foundation.

The
Court’s pro-corporate majority was clearly uncomfortable but in the light of overwhelming
facts was forced to unanimously rule.Justice Clarence Thomas, himself once
employed by biotech firm Monsanto wrote
the opinion behalf of eight justices.Scalia concurred in a separate opinion. Thomas wrote, “A naturally
occurring DNA segment is a product of nature and not patent eligible merely because
it has been isolated.”He was, however,
quick to limit the damage by saying the DNA isolated and synthesized by a “unique
method” could be patented—an exception wide enough to drive a semi-truck
through it.

Still,
environmentalists had been prepared for a worse outcome and were delighted to
be surprised.

Score
a rare one for the good guys.

5)The first of a string of high profile
cases dealing with race and discrimination gave some progressives a glimmer of
hope.In Arizona v. Inter Tribal Council
of Arizona the court had to rule on one of the most draconian voter ID laws in the country, one which
widely inspired copy-cat legislation in other states.

The
National Voter Registration Act of 1993
(NVRA) which set standard for registering to vote in Federal elections via mail
in and motor voter opportunities when
obtaining drivers licenses and other state services—signing an affidavit attesting to citizenship and that all of the
information provided on the forms was accurate. Despite this in 2004, Arizona voters
passed Proposition 200, which
requires prospective voters to provide documentary proof of citizenship–such as
a birth certificates, passports or Native American tribal ID cards not actually
used in Arizona–in order to register to vote including those who registered via
motor voter or mail.

This
was a particular burden on Native Americans, many of whom lacked the proper identification
and had to make inconvenient and long trips to state facilities to personally
obtain them.In addition because of
their appearance, many native would be voters were assumed to be Hispanic and likely undocumented.So with the aid of the ACLU the tribal
council sued.

Most
observers held little hope for the case in front a conservative court with an
iffy track record on electoral and voter cases.So there was both astonishment and glee when the Court upheld the
Federal NVRA standards by a 7-2 vote.

But
despite the celebration, there was less there than meets the eye.The court ruled that the easier standards
only applied to those using the motor voter and mail in Federally approved
forms.It excluded those who registered
by conventional means.So the decision only
affects a small percentage of voters, about 5000 a year.Most will continue to have to produce the
documentation required in Proposition 200.

Call
it a split victory with less than meets the eye consequences.

6)Like drama queens the Court held back it
three most high profile and controversial cases until the last moment,
revealing them over three days in the last week of the session.First up was yet another opportunity at one
of the Court’s favorite pastimes—chipping away at affirmative action in American college and university admissions
without actually saying that race could play absolutely no role in the process.

In
Fisher
v. University of Texas at Austin a white student with a grade point
average, test scores, and activities meeting the schools admission standards
sued when she was denied admission.She
felt that the schools discriminated against her in favor of minority students
meeting the guidelines-- crafted to meet the strict standards set up by earlier
Court decisions.

In
a 7-1 majority opinion written by swing Justice
Anthony Kennedy, the Supreme Court asked the U.S. Court of Appeals for the
5th Circuit to re-evaluate the case of plaintiff Abigail Fisher broadly hinting
that it should rule in her favor.“Strict
scrutiny must not be strict in theory but feeble in fact,” Kennedy wrote referring
to earlier standards. “The reviewing court must ultimately be satisfied that no
workable race-neutral alternatives would produce the educational benefits of
diversity.”

While
not definitive but procedural, academic observers were dismayed.They were at a loss to figure out any way to
take historically discriminated minorities into account when crafting
admissions policies.Some may give up
trying.

Although
the NAACP Legal Defense and Educational
Fund claimed a narrow victory in that the Court did not forbid any racial consideration
in admissions as many had feared, most neutral observers saw it as a slap in
the face—and perhaps a stake in the heart—of affirmative action.

Score
a weasely win for white skin privilege.

7)Of course the bomb tossed at the decades
old Voter Right Act on Tuesday in Shelby County v. Holder was
historic.In a 5-4 split decision
carried by the conservative majority, the Court ruled that Section 4 of the Voting Rights Act is unconstitutional. Its formula
can no longer be used as a basis for subjecting jurisdictions to preclearance
of changes to voting laws in states and areas with a proven history of
discrimination.

Chief Justice
John Roberts blandly
asserted that, “things have changed dramatically” in the South nearly 50 years after
the Voting Rights Act was signed. The decision did not strike down the whole
act. “Our decision in no way affects the permanent, nationwide ban on racial
discrimination in voting found in [Section] 2. We issue no holding on [Section] 5 itself, only on the coverage
formula. Congress may draft another formula based on current conditions.”

With
the House in firmly in Republican
hands for at least the near future, it is unlikely to pass new legislation that
would remedy the supposed deficiency—perhaps by extending the protections
against enacting discriminatory voter laws nationwide.

Both
the Court’s liberal wing and the Civil Rights activists who see a persistent
pattern of abuse and who anticipate a slew of new restrictive legislation were
appalled.

Score
a big win for White skin privilege and support for Republican hopes for
survival despite losing a demographic edge.

8)Of course there was widespread
jubilation on Wednesday when the Court finally got around to announcing its two
big same sex marriage cases.It came
down just as most court observers expected—avoiding a sweeping ruling that
would legalize gay marriage across the board in striking down DOMA and making a
ruling on purely technical grounds that allows wedding to begin again in
California.

Many
wondered how the court let relatively liberal rulings get by.In the case of DOMA the equal protection under the law argument was easy to win when the plaintiffs
could demonstrate real harm by having their legal marriages discriminated against.Kennedy also advanced some fuzzy arguments
based on the traditional jurisdiction of the states over marriage and general
deference to the rights of states under federalism.

On
the other hand Kennedy joined Alito, Thomas, and the usually reliably liberal JusticeSonia
Sotomayor on
the dissenting side of the Proposition 8 case.All four of the dissenters said they would have ruled on the underlying
legality of the successful court challenge to the original state wide
referendum.None said who they would
have voted, although Alito and Thomas would have surely supported the original
outcome of the referendum and Sotomayor and Kennedy likely in favor of marriage
equality. Chief Justice Roberts, once again displaying a practical side that
wanted to doge the fundamentals issues while allowing the inevitable to occur
wrote the narrow opinion that the plaintiffs in the case simply did not have
standing before the court to sue to overturn a lower court order invalidating
the Proposition.The rest of the
liberals and the irascible Scalia probably fearing a broader ruling concurred.

There
has been wide spread speculation on why the Court “went liberal” on the two
issues.I believe it was because same
sex marriage was not an important issue one way or another to the corporate
oligarchs to which the majority is really enthralled to.In fact if controversy over marriage equality
and gay rights can occupy the public’s attention, the less likely it is that
they will ponder the myriad of way people on both sides are being used and
abused so that the ultra-wealthy can get even fatter.

It
has also been said that some of the justices may have been swayed by family
members or even openly gay law clerks.One
top law school professor who follows the Court closely said, “It’s a lot harder
to hate someone you know.”That mirrors
a big reason for the rapid changes in societal attitudes on the issue since
more and more folks have come out.

The
images of Gay couples most of the Court had in their minds, and most of the
public as well, were of nice whiteMy-Two-Mommies, exquisitely groomed boys with creative jobs and big buck
disposable incomes, and some over the top but endearing Queens.Despite the fact that many folks of color
and many poor and working class people are LBGT, they were largely invisible to
the imaginations of the Court.

Gays
might well be a minority in America, but they are not regarded by the real
power brokers of this country with the dread and fear reserved for Blacks and swarthy immigrants.In the end the court was willing to abandon
the interests of hard core religious opponents in the face of ambiguity on the
issue from the real economic powerhouses regularly given every deference.Scalia knew it, which was why his raging,
blistering dissent on the DOMA ruling tarred the entire Court, not just the
liberal minority, with invective.

We
are all celebrating the half victories for marriage equality in these Court rulings,
but we would be well to remember that it was won with a whiff of white skin and
economic privilege.

There
is much more work ahead, but activists for social justice for the LBGT community
cannot forget the damage the same Court has done other minorities and people of
color.We owe those exploited
communities real solidarity and a commitment to fight side by side against all
oppression.

Taken
on the whole, it is easy to see that this Court did not navigate the illusionary
center path but was the consistent champion of privilege and authority.Reversing the damage that this Court has done
will take concerted action in the streets and in the voting booth and a united
movement.

1 comment:

Vance vs. Ball State also continues the trend so adroitly identified above. The case narrows and simplifies the definition of "supervisor" as it pertains to title VII legislation. I actually agree with the ruling, but the decision is written in a way that I feel sets up an opportunity for employers to dodge the intention of title VII. If they spent a little more time defining how much scheduling, how much direction, how much instruction, etc. one would have to give before the title "supervisor," rather than "coworker" became legally applicable, I think it would be a very good ruling. As it stands, more energy is directed towards making it clear just how an employer can avoid liability than how a person who has been discriminated against can prove it.